Page:The country justice. containing the practice, duty and power of the justices of the peace, as well in as out of their sessions.djvu/30

8 bono Pacis, ac pro conservatione ejusdem, & pro quieto regimine & gubernatione populi,) I see not why the Justices of Peace should be retrained from preventing and repressing such other Offences, Misbehaviours and Deceits, as may break the Amity, Quiet and good Government of the People, and whereof Discords, and so Breaches of the Peace do often arise, (though there appear neither Force nor Violence in the Offence itself;) as Libellings, Cozenages, and such other Offences. Vide Tit. Good Behaviour.

But it is no Part of the Office of the Justice of Peace to forbid lawful Suits; albeit they shall do well to be Mediators of Peace in such Suits and Controversies as shall arise among their Neighbours. Neither shall any Man be punished for Suing any Writ in the King's Courts, soit ceo de Droit ou de Tort. Co. L. 61.

The Conservation of this Peace (and therein the Care of the Justice of Peace) consisteth in three Things, viz.

1. In Preventing the Breach of the Peace, by taking Surety for the Keepirg of it, or for the Good Behaviour of the Offenders, as the Case shall require.

2. In Pacifying such as are Breaking of the Peace. See postea, Tit. Affray.

3. In Punishing (according to Law) such as have broken the Peace.

But of the Three, the preventing Justice is most worthy to be commended to the Care of the Justices of Peace.

The Constituting Justices of Peace is inherent, and inseparable from the Crown, and because this amongst others had been severed therefrom, to the great Diminution and Detriment of that Royal State, and the Hindrance and Delay of Justice, as speaks the Statute of 27 H. 8. It was thereby enacted, That no Person should have Authority to make any Justices of Peace, but only the King, his Heirs and Successors, by their Letters Patent; nor was, nor is, his Power to be delegated, for the King cannot grant a Man Power to make Justices of the Peace, as is the Book of 20 H. 7. 7. a.

Justices of Peace (at this Day) are of three Sorts, and are appointed or created by three Means.

1. First, By Act of Parliament; as the Bishop of Ely and his Successors, and their temporal Stewards of the Isle of Ely (for the Time being) shall be Justices of Peace within the said Isle, and shall use and have within the said Isle all such Power as doth belong to any Justice of Peace within any County.

And so the Archbishop of York, and the Bishop of Durham, and their Successors, and their temporal Chancellors, &c. ibidem.

2. Secondly, By Grant made by the King by his Letters Patent under the Great Seal, as Mayors, and the chief Officers in divers Corporate Towns: And such the King cannot discharge again at his Pleasure, but they shall continue and enjoy their Jurisdiction according; as their Letters Patent do enable them; and therefore if the King granteth to a Mayor, or other Head Officer of a City or Corporate Town, and to their Successors, to be Justices of Peace in their City or Town, and after maketh out Commission of the Peace to others there, yet the Authority and Jurisdiction of the Mayor, &c. remaineth good, for that it was granted to them and their Successors, and is not revocable at the King's Pleasure, as the Commission of the Peace is.

Which Grants and Charters may notwithstanding for some great and general Defect of, or Miscarriage in the Execution of the Powers and Authorities herein granted, be repealed, and the Liberties seized, so also may the King's Majesty upon reasonable Cause moving him, ne deesset populo in Jusitia exhibenda, grant concurrent Commissions of the Peace within such Incorporations.

And such Justices of Peace by Grant or Patent have thereby the same Power as the Conservators of the Peace had by the Common Law; and such Power also is given to the Justices of Peace (or to any one Justice of Peaces) by express Words in any Statute: But none of them have thereby the whole Power which is ordinarily given to the Commissioners of the Peace by their Commissions. And so of the first Sort of Justices of Peace by Act of Parliament, sc. the Archbishop of York, and the Bishops of Durham and Ely, and their temporal Chancellors and Stewards.

Also concerning such Justices of Peace by Grant or Patent, if the Grant be made to such as be not learned in the Law, yet if it be Ad Pacem conservandam, &c. or Ad inquirendum tantum, this is a good Grant: But if the Grant be made, Ad audiendum & terminandum, this is a void Grant, (ut dicitur) unless some one learned in the Laws be also joined with the other in the Commission; and then such a Commission made Ad audiendum & terminandum is good in Law. For in all Cases where the Commission or Grant is Ad audiendum & terminandum, it is meet that some, or one of them at the least,